Two failed improvement plans, risks of poor performance provided cause
An Ontario arbitrator has upheld the dismissal of a health-care worker for non-culpable poor job performance following two failed performance improvement plans.
“It's important to understand that ‘non-culpable conduct’ doesn't mean that someone hasn't done anything wrong, it just means they haven't done it wrong on purpose,” says Jon Pinkus, partner with the Labour and Employment practice group at Samfiru Tumarkin in Toronto.
“So this is someone who didn't intentionally act contrary to her job duties, but was just totally unable to do the job in any sense.”
Proficiency concerns on job
The 53-year-old worker obtained her medical laboratory technologist (MLT) license in 2015. She began working at Hamilton Health Sciences (HHS) in Hamilton, Ont., as a full-time MLT in November 2018.
The job duties of an MLT involved identifying tissue extracted from patients and turning them into specimens for pathologists to review. HHS had standard operating procedures for the various processes for MLTs to follow, to ensure correct diagnoses for patients.
The senior MLT and the educator technologist at HHC both raised concerns about the worker not being proficient enough at some of the MLT tasks. In the spring of 2020, the senior MLT approached the manager of anatomical pathology about the worker’s behaviour and performance.
The manager met with the worker and the senior MLT on May 27 to discuss protocols and productivity targets. The worker agreed with the discussion.
The senior MLT started shadowing and helping the worker. However, there were still concerns that the worker wasn’t following the proper processes and she showed a lack of insight and ability to reflect on what she was doing.
Performance improvement plan
In August, the manager, educator technologist, and senior MLT prepared a learning plan for the worker.
Observations revealed that the worker still wasn’t properly following procedures, had trouble prioritizing work, and needed assistance in completing tasks. She also sometimes didn’t communicate well, which led to errors and delays, and was unable to articulate messages when she answered the phone in the lab.
The educator technologist and the senior MLT provided extensive notes to the manager indicating significant problems with the worker’s performance and communication. The worker disagreed with the assessments.
The manager met with the worker on Oct. 21 to review her progress on the learning plan. The worker said she thought that everything was fine, but the manager showed her that she had failed an assessment and said that significant improvement was needed.
On Nov. 4, a second learning plan was implemented and the worker was asked if there was anything that might be affecting her work, but she said no. The worker asked for three months of further training, but the manager said she was already a licensed MLT and she was expected to have the required skills.
Two-week learning plan, shadowing
Another MLT shadowed the worker over the next two weeks and the worker was told that she was expected to successfully complete the learning plan during that time.
The senior MLT observed that the worker still wasn’t properly prioritizing workflow. She also had to tell the worker how to do certain tasks and the worker still had difficulty relaying information from phone calls.
On Nov. 26, the manager met with the education manager and the HR business partner to discuss the second learning plan and their assessments. The assessments indicated that the worker couldn’t perform the basics of the job and was a risk – to safety in the lab and to potential inaccurate specimens that could lead to incorrect diagnoses.
They believed that the worker knew what was required, but she chose not to follow procedures.
On Dec. 10, HHS terminated the worker’s employment for “non-culpable lack of competency that contributed to poor and unsafe performance of her job duties.”
The worker claimed that she didn’t fully understand why she had been dismissed and maintained that she hadn’t made any “big mistakes.”
No just cause, discrimination: union
The union grieved the termination, arguing that it was without just cause as the performance standards weren’t clearly communicated and the worker wasn’t given a reasonable opportunity to meet them. It also alleged that the termination amounted to discrimination based on race and place of origin.
The worker said that she felt she was treated differently because of her race and the manager didn’t treat her fairly compared to other employees.
The arbitrator noted that to justify dismissal for non-culpable poor performance, the employer must show that it defined the level of performance required, communicated it to the employee, gave reasonable supervision and instruction along with a reasonable opportunity to improve, the employee was unable to meet the standard, and adequate warnings were given.
The arbitrator accepted HHS’s version of events, as its documentation and testimony were reliable and detailed. There was no evidence of ill will against the worker and the existing evidence pointed to an “extensive exercise to mentor, try to retrain and assess [the worker] for a job that she was purportedly already qualified to perform.”
The arbitrator found that HHS made it clear to the worker on many occasions over the six-month period from May to November 2020 what the required level of job performance was and that she was not meeting it. The two learning plans and job shadowing were also reasonable supervision and instruction, and they gave the worker ample opportunity to meet the required standard, said the arbitrator.
The arbitrator also found that the worker’s work not only fell below the standards of the MLT position, but she was unable to improve and presented a risk to the lab, despite months of mentorship. This indicated that the worker was unable to perform the job to a reasonable standard, the arbitrator said.
Improvement plans in good faith
Performance improvement plans are important for employers to use, but they also have to do them properly before dismissal is considered, according to Pinkus.
“What [HHS] did correctly is they were issuing [the plans] in good faith, they were based on bona fide concerns, they were giving the worker the requisite support to be able to accomplish the improvement plans, and there were several chances given to remedy the behavior,” he says. “A lot of pitfalls that I see with performance improvement plans are because they're not issued in good faith.”
“That's the biggest thing for performance improvement plans - they're clear on their face that there's an interest in keeping that employee,” adds Pinkus. “The employer will give them a certain amount of time to improve, but if they terminate them before that period elapses, the courts will see that every time.”
In addition, the worker knew the standard operating procedures and established work processes, but she didn’t follow them and didn’t seem to appreciate that the stakes were high for her position, said the arbitrator in finding that the worker was incapable of performing her job and was given notice that her employment was at risk.
“The employer had a large amount of evidence that this employee basically did every single aspect of her job incorrectly - and in many cases, quite serious safety offenses - so this was really serious stuff, both in the magnitude and the sheer volume of offenses,” says Pinkus.
Statutory notice
The arbitrator determined that dismissal was appropriate for the worker’s lack of competency. However, the arbitrator noted that the Ontario Employment Standards Act, 2000 (ESA), requires employers to provide written notice of termination for non-culpable deficiencies in job performance. Under the ESA, the worker was entitled to two weeks’ pay in lieu of notice for her two years of service, the arbitrator said.
“Once the employer acknowledges that it's a non-culpable termination, that has statutory implications, meaning that you have to pay out the statutory notice and statutory severance [if applicable],” says Pinkus.
The arbitrator dismissed the discrimination allegation as there was no evidence supporting it other than the worker’s assertion. In fact, the evidence showed that the manager interviewed and hired the worker and didn’t treat her differently, and in fact he went through significant effort to save her employment, said the arbitrator.
The grievance was dismissed, but HHS was ordered to pay the worker two weeks’ salary and benefits in lieu of notice.
Pinkus cautions that the nature of the job and the worker’s relatively short service were key factors that led the arbitrator to uphold the dismissal.
“The result may have been very different if we had an employee with longer service - the facts are extreme with a short-service employee with just about the most serious non-culpable conduct one could imagine,” he says. “You could change any one of the variables - the years of service, the nature of the job, the safety-sensitive aspects, the documentation - any one of those things could have easily changed it to a termination without cause even under the common law standard, or in this case under the collective agreement.”
See Hamilton Health Sciences v. OPSEU/SEFPO Local 273, 2023 CanLII 93755.
